Federal Issues

WSIA closely monitors the work of federal legislators and regulators for issues that impact the surplus lines insurance industry. WSIA provides comments on legislation or regulations when appropriate and in the best interest of the WSIA membership.

Federal Definition of Private Flood Insurance

The Flood Insurance Market Parity and Modernization Act was first introduced in 2014 by Rep. Ross and then Congressman Patrick Murphy (D-FL) and Senators Heller and Tester (S. 563) in 2014 and again in 2015 and 2016. In 2017, Representative Kathy Castor (D-FL) replaced Rep. Murphy as a cosponsor with Mr. Ross after Mr. Murphy left Congress (H.R. 1422). Since 2014, the Association has strongly supported this legislation that will revise the federal definition of private flood insurance. Revisions are necessary to amend the current definition to ensure eligible surplus lines and other private insurers private market solutions and alternatives are available to consumers in need of unique and complex flood risks and that the policies are accepted by lenders.

WSIA works in coalition with other trade association to help Congress understand the importance of the changes proposed in the bill and that the changes are necessary to relieve the confusion caused by the Biggert-Waters Act of 2012 (BW12). BW12 encourages participation from the private market as an alternative or supplement to the NFIP, but the definitions used have created confusion and uncertainty for lenders accepting the products. The proposed legislation will incorporate NRRA-compliant language as part of the proposed revised definition and provide appropriate guidance to the lending community on the acceptance of private market flood insurance to fulfill the mandatory purchase requirement when an individual or company seeks a federally-backed mortgage.

Tied to this legislation is the reauthorization of the National Flood Insurance Program (NFIP), originally set to expire on September 30, 2017. On September 26, Congress agreed to reauthorize the NFIP for three months, until December 8, 2017. The short-term reauthorization was done in conjunction with providing emergency aid to the states impacted by Hurricanes Harvey, Irma and Maria. In 2018, after Hurricane Michael and other flooding events, the program did not receive any additional funding or debt forgiveness, and at this time, has approximately $10 billion left in borrowing authority, if needed.

Since the scheduled expiration of the program on September 30, 2017, the NFIP has received ten short-term reauthorizations to December 8, December 22, January 19, February 8, March 23, July 31, November 30, December 7, December 21 and May 31, 2019. Until March 23, the extensions were tied to the federal budget process, resulting in less focus on the reform of the program as Congress worked through the overall budget process. However, on March 23, Congress decoupled the NFIP reauthorization from the budget omnibus bill and extended the program to July 31, 2018. On July 31, Congress approved an additional four-month extension to November 30, 2018, when it extended the program for one week to December 7, then again to December 21. With these last two short-term extensions, the NFIP once again became connected to the budget process; however, in an effort to ensure the program did not lapse as tensions grew surrounding the budget and a likely shutdown, the NFIP was separated from the budget and extended to May 31, 2019.

After Congress and the President failed to agree on a budget by December 21, the federal government experienced a partial shutdown. On December 26, FEMA announced its determination that the NFIP is unable to use the National Flood Insurance Fund for any purpose other than to pay the costs incurred in the adjustment and payment of any claims for losses on existing policies in force prior to the lapse in its appropriation. Therefore, even though Congress extended the NFIP, FEMA determined that it was not authorized to sell new policies or renew policies in the absence of an appropriation. However, late the the evening of December 28, FEMA rescinded its December 26 guidance, noting that NFIP insurers could resume the sale, renewal and monetary endorsements for flood insurance policies and to treat the program as operational since December 21, 2018 without interruption.

While the House approved a comprehensive flood reform plan in 2018, which included H.R. 1422, among a number of other broad program reforms, the Senate did not take action on the legislation or the reform measures similar to the House package. With the 115th Congressional Session and will need to refiled in the 116th Congressional Session coming to an end, the legislation has died and will now need to be refiled in the 116th Congressional Session beginning in January. Rep. Ross has retired from Congress and Sen. Heller did not win reelection, so Rep. Castor and Sen. Tester will likely seek new cosponsors and refile the same or similar legislation early in the new session. At the same time, federal banking regulators have announced their intention to issue rules as required in BW12. The regulators indicated they plan to issue a rule based on the comments they received in late 2013 and early 2016 by February 2019. The final rule could ultimately address concerns that WSIA and other industry parties have sought to clarify through private flood legislation, but how far the regulations could toward addressing those specific concerns remains to be seen.

Timeline of Legislation

2018

On January 19, the federal government is temporarily shut-down when Congress fails to pass its budget. As part of the government shut-down, the NFIP temporarily shuts down as well; however, the government shut-down lasts only through the weekend and results in the NFIP becoming operational again on January 22. As part of the Budget Omnibus package, Congress extends the NFIP through February 8.

On February 8, Congress includes the reauthorization of the NFIP in another short-term extension of the Omnibus action, resulting in a new expiration date for the NFIP of March 23.

As the March 23 expiration deadline approached, the NFIP is extended through July 31, 2018, separating the NFIP from the budget process.

On July 31, Congress issues another short-term four-month extension of the NFIP through November 30, 2018. No actions taken on private flood insurance legislation as part of the extension.

On November 30 the NFIP is granted a one-week extension to December 7.

On December 6, Congress extends the NFIP for two weeks to December 21, the same deadline for the Continuing Resolution that must be passed to continue funding significant portions of the federal government.

On December 21, with the NFIP in danger of lapsing, Congress and the President agree to extend the Program to May 31, 2019 and allow the next Congress to address reforms and long-term reauthorization of the NFIP as well as the technical revisions to the definition of private flood insurance sought by the Flood Insurance Market Parity and Modernization Act. The federal government ultimately shutdown effective December 22 at 12:00 a.m.

On December 26, even though the NFIP avoided a lapse with the May 31 extension, FEMA announced its determination that the NFIP cannot issue new or renewal policies while there is a federal government shutdown and declared no new or renewal policies will be issued from December 22 until the shutdown is resolved or in the event that it determines that conditions exist (e.g. a significant impact to the national economy) which might justify the resumption of activities in advance of an appropriation.

On December 28, FEMA rescinded its December 26 guidance, noting that NFIP insurers could resume the sale, renewal and monetary endorsements for flood insurance policies and to treat the program as operational since December 21, 2018 without interruption.

2017

Flood legislation was quickly reintroduced in both chambers as H.R. 1422/S.563.

On June 21, House Financial Services Committee passes H.R. 1422 as part of a broader package to address reform and reauthorization of the National Flood Insurance Program (NFIP), but the full House and Senate do not pass the legislative package.

On September 28, the House adds H.R. 1422 to an unrelated bill to reauthorize the Federal Aviation Authority, but the Senate declines to approve the legislation with the private flood provision.

On November 14, the House passed the 21st Century Flood Reform Act (H.R. 2874), a comprehensive flood insurance package with a five-year reauthorization and reform of the NFIP, including the Ross-Castor private flood legislation. The Senate did not take action on this bill and continues to work on various alternative proposals for comprehensive reform and reauthorization. Although the Senate is not expected to take action on this version of the bill, it is expected to provide some form of a companion proposal which would incorporate some of the House bill.

On December 8, 2017 the House and Senate both adopted a short-term extension of NFIP to December 22, 2017 and on that date followed with another short extension to January 19, 2018.

2016

WSIA legacy organization, NAPSLO, testified in support of H.R. 2901 before the House Financial Services Subcommittee on Housing and Insurance.

On April 28, 2016 the U.S. House of Representatives passed H.R. 2901 on a 419-0 vote, after passing the House Financial Services Committee 53-0. Unfortunately, the legislation failed to move in the Senate before Congress adjourned.

2014-2015

House and Senate discussions on proposed legislation do not ultimately lead to hearings or passage of the bill.
Updated information on the progress of this legislation can be found in the WSIA Legislative Updates issued on a regular basis. To view these updates, check out the WSIA News page.

Foreign Account Tax Compliance Act (FATCA)

COMPLIANCE NOTE: On December 13, 2018 the IRS and Treasury proposed regulations intended to reduce unnecessary regulatory burdens associated with FATCA compliance. Since FATCA was passed, the P&C industry, including WSIA, has asked for relief from FATCA reporting due to its unnecessary and burdensome application to our industry. Ultimately, FATCA is directed at foreign financial institutions and financial intermediaries and aims to prevent tax evasion by U.S. citizens, U.S. residents and corporations through the use of offshore accounts, but the application to the law cast a wide net, including P&C non-cash value premiums, that are not in a position to commit the type of tax evasion the law intended to curtail.

WSIA is pleased with the proposed regulations since, in line with what the industry has consistently requested, they will eliminate withholding requirements for non-cash value insurance premiums under FATCA, thereby eliminating the concerning reporting requirement as well. While there is a 60-day comment period on the proposed regulation, and then time for the IRS to issue a formal version of the final regulation, the release indicates that taxpayers can rely on the proposed regulation immediately for all open years until the final regulation is issued. WSIA expects the final rule will be issued by mid-2019.

Surplus lines brokers and insurers’ compliance obligations related to the Foreign Account Tax Compliance Act (FATCA) took effect on July 1, 2014. WSIA has compiled a number of helpful resources and updates related to FATCA reporting requirements. This page provides links and information that will help you as you develop your own compliance program. To learn more about FATCA we recommend starting with our Executive Summary and Legal Memorandum linked below.

Since FATCA was passed, WSIA and many other members of the P&C industry have asked for relief from FATCA reporting due to its unnecessary and burdensome application to our industry. Ultimately, FATCA is directed at foreign financial institutions and financial intermediaries and aims to prevent tax evasion by U.S. citizens, U.S. residents and corporations through the use of offshore accounts, but the application to the law cast a wide net, include groups like our industry that is not in a position to commit the type of tax evasion the law intended to curtail.

Legislative has twice been introduced in the House to eliminate the P&C industry’s requirement to report non-cash-value premiums under FATCA in H.R. 871 (2017) and H.R. 6159 (2016). Although no action has been taken on the legislation, work continues to educate Congress and the Treasury Department on the industry’s concerns in hopes of granting relief; however, until such time that legislation is passed or a regulation is issued providing the relief, industry members must continue to maintain FATCA compliance.

National Association of Registered Agents and Brokers (NARAB II)

The National Association of Registered Agents and Brokers (NARAB II) was enacted as part of the Terrorism Risk Insurance Program Reauthorization Act of 2015. WSIA strongly supported the creation of NARAB II and advocated for its passage with Congress because it will streamline agent and broker licensing for those operating on a multi-state basis. It creates a nonprofit board governed by a panel of state insurance regulators and industry representatives to create rigorous standards and ethical requirements with a goal of applying licensing, continuing education and nonresident insurance producer standards on a multi-state basis. With a focus on nonresident licensing, agents or brokers applying for a national license through NARAB will first be required to hold a current license in their home state, pass a national criminal background check and meet the criteria established by the Board, which shall include standards for personal qualifications, educational training and professional experience.

The underlying NARAB legislation directed the President, with the advice and consent of the U.S. Senate, to appoint the 13 Board members (8 regulators and 5 industry members) 90 days from January 12, 2015. Unfortunately, the NARAB Board of Directors has yet to be appointed and therefore NARAB has yet to become operational. The former President issued 10 nominations but none of the nominees received hearings by the Senate prior to the expiration of the last Congress. Prior nominees may request reconsideration by the new administration; however, the administration may announce new nominees at its discretion for consideration by the Senate. Industry remains dedicated to NARAB and is hopeful that the President will take quick action to nominate board members in the near term.

Once a quorum of the board is approved, it will first establish rules, requirements and procedures for membership, as well as a national licensing clearinghouse. For additional information about NARAB, visit WSIA's NARAB implementation resource.

NARAB Comment Letters

Terrorism Risk Insurance Program Reauthorization Act of 2015

On January 12, 2015 the Terrorism Risk Insurance Program Reauthorization Act of 2015 was enacted, reauthorizing the program for an additional six years (12/31/2020). Although the program expired on December 31, 2014 due to lack of action by Congress, the January reauthorization allowed for no gap in program coverage. Key changes to the TRIA program that began January 1, 2016 are:

Federal share reduces from current 85% to 80% (by 1% per year)

Program trigger increases from current $100M to $200M (by $20M per year)

Industry’s aggregate retention increases from current $27.5B to $37.5B (by $2B per year), and Treasury’s recoupment rate increases from 133% to 140%

View a side-by-side comparison of expired TRIA program and the new Terrorism Risk Insurance Program Reauthorization Act of 2015.

In March 2016, FIO issued a voluntary data call, which treated admitted and nonadmitted insurers consistently. In July 2016, the NAIC also issued a mandatory data call related to terrorism insurance. In 2017, both the NAIC and FIO issued mandatory data calls. Insurers should expect to respond to both state and federal TRIA data calls until otherwise advised by individual states or the federal government by regularly reviewing notices on the Department of Treasury’s FIO website or the National Association of Insurance Commissioners’ website.